Prior to attending law school, he worked as a city planner in Hillsborough County, Florida, and received his Masters Degree in Urban and Regional Planning. While in law school, Russ was a member of the Law Review, and is the author of an article entitled The Reasonableness of Aesthetic Zoning in Florida: A Look Beyond the Police Power, 10 F.S.U.L.Rev. 441.

For nine consecutive years (2007–2015), Russ has been named to FloridaSuperLawyers® magazine, which recognizes the state’s top five percent of attorneys who are selected through an extensive peer review, statewide survey and independent evaluation. He has also been recognized by Best Lawyers in America® (2011-2016) and Florida Trend Magazine's Legal Elite (2015), noting his practice in land use and zoning law. Russ is also AV-rated by Martindale-Hubbell.

As of January 1st of 2017, it has been reported that the total value of real property in Lee County increased for the fifth consecutive year to $105.6 billion (nearly 9% higher than 2016 values).

With this year’s Truth in Millage (“TRIM”) Notices just around the corner (typically mailed by the Lee County Property Appraiser in mid-August), one recent legal opinion highlights the nuances of remedies available to the property owner—and the Property Appraiser—in the event assessed values are contested.

Background on Florida’s “Save Our Homes” Doctrine

For real property that has been classified as a “homestead” in Florida, the Save Our Homes provision of Section 193.155(1), Florida Statutes, allows for an annual increase of only 3% in the assessed value of property, or the yearly increase in the Consumer Price Index (CPI), whichever is less. Moreover, under 193.155(2), Florida Statutes, if the capped value exceeds the market value in a given year, the capped value will be reduced to the market value.

During the past 2-3 years, Lee County has been engaging in a systematic and comprehensive streamlining of its zoning, permitting and development review processes. In a report released recently by the County’s Department of Community Development (DCD), the results of this streamlining effort are identified in detail.

Working independently and in conjunction with the Business Issues Task Force of the County’s Horizon Council, DCD has developed and implemented improvements in customer service and technology, amendments to the County’s Land Development Code, and is in the process of proposing changes to its comprehensive plan that facilitate the processing of permitting applications. Some of the highlights include:

It took a while, but the Florida Supreme Court recently upheld a 2011 5th District Court of Appeals’ decision invalidating a city ordinance that gave priority to code enforcement liens over prior-recorded mortgages. City of Palm Bay v. Wells Fargo Bank, N.A., Case No. SC11-830 (May 16, 2013). Palm Bay’s ordinance had attempted to establish that the City’s code enforcement liens were co-equal with state and local tax liens and were “superior in dignity to all other liens, titles and claims.”

This Blog first reported on this case in March and April of 2011, when the 5th DCA initially struck down the ordinance and then certified the question as one of great public importance to the Supreme Court. In a 5-2 decision, the Supreme Court found that the ordinance “establishes a priority that is inconsistent” with State statutory law. The Court held that the prioritization scheme established in Chapter 695, Florida Statutes, was controlling and that, if the ordinance was upheld, it would allow the municipality “to displace the policy judgment reflected in the Legislature’s enactment” of Chapter 695. Under Section 695.11, the sequence of recordation determines the priority of an instrument, with a document bearing a lower recordation number having priority over a document having a higher recordation number.

The legal significance of this priority is reflected in Section 695.01(1), which provides that a conveyance or transfer of any interest in real property is not “good and effectual … against creditors or subsequent purchasers” unless it is “recorded according to law.”

Accordingly, the Palm Bay ordinance was held invalid as being in conflict with state law. A dissenting opinion would have upheld the ordinance as being within the broad home rule powers of Florida municipalities.

The Importance of the Palm Bay Decision

With the rise in both foreclosures and code enforcement activity in many jurisdictions in recent years, this decision provides certainty to mortgage holders that their liens will not be subject to displacement by a subsequent code enforcement lien that arose through a code enforcement proceeding. The decision also reinforces the limits on local ordinances that deal with matters that are comprehensively legislated at the state level.

Please note that, as of this writing, the time for moving for a rehearing on this decision has not expired.

On March 12, the Lee County Commission approved a 2-year, 80% reduction in road, park and school impact fees charged on new construction in an effort to encourage new development permitting and increase the County’s competitiveness for new business and industry. Fire and EMS impact fees were not affected. The reduction in impact fees will be in effect until March 13, 2015, and will reduce the fee charged for a single family house by approximately $10,000. The reduction applies to other types of residential and nonresidential development as well. The ordinance adopted by the County also provides for a 2-year extension on existing impact fee credits and provides credits for prepaid transportation mitigation paid by approved Developments of Regional Impact.

Lee County has taken several steps over the last few weeks to streamline the development permitting process and improve the regulatory “climate” for new businesses and development.

Land Development Code Amendments

On February 12, the Lee County Commission approved a series of amendments to the Land Development Code (LDC) that were recommended by the Horizon Council, the County’s economic development and business advisory board. The changes include streamlining the “sufficiency review” process for projects undergoing rezoning, providing greater flexibility to the zoning director to administratively approve changes to approved projects that formerly required a public hearing for approval, and eliminating the 5-year lifespan for planned development master plans, making these plans valid in perpetuity. The amendments were approved unanimously by the County Commission, and received support from Lee County staff and the Conservancy of Southwest Florida.

Impact Fees

At its Management & Planning meeting on March 4, the County Commission continued its recent discussions on suspending or adjusting impact fees charged on new development. As previously reported in this blog, the Commission initiated discussions earlier this year with consideration of a 2-year suspension of all impact fees in an effort to spur development and economic growth. During public input at a workshop and public hearing, issues arose regarding the effect of such a suspension on municipalities, the school district, the fire districts and the holders of impact fee “credits” that had been issued by the County for previous improvements and land donations. In light of these concerns, the Commission reviewed its options on March 4, and a majority of commissioners appeared to reach some consensus that a significant reduction of current fees, perhaps by as much as 80%, would ameliorate some of the concerns of a complete suspension and still have the desired effect on development. Fire and EMS impact fees would be exempt from this reduction. The Commissioners requested additional information prior to the next, and possibly final, public hearing on this matter scheduled for Tuesday, March 12 at 9:30 a.m. in Commission chambers.

Plan Amendment Cycles

On March 5, the County Commission approved a change to its administrative code to remove the “once per year” cycle for amendments to the Lee County Comprehensive Plan. Plan amendment applications will now be reviewed and processed by Lee County throughout the year as they are submitted. Previously, plan amendment applications were processed only once per calendar year beginning on September 30, potentially causing delay for those projects that required a plan amendment and missed the September 30 filing deadline. This change follows statutory revisions enacted by the Florida Legislature in recent years to loosen the plan amendment process.

As always, we will continue to update you as developments in Lee County occur.

On Tuesday, February 12, 2013, the Lee County Commission unanimously voted to delay consideration of a proposed 2-year suspension of impact fees so that additional information could be provided regarding the effect of such a suspension on the County’s infrastructure budgeting.

Also of concern was the impact on the various municipalities within Lee County and the legal implications to those parties who have received impact fee “credits” for various land donations and improvements. The motion to defer the item, which was made by Commissioner Kiker and approved by the Board at the beginning of the public hearing, included a suggestion that the Board consider a “significant” reduction in impact fees as opposed to a suspension of all fees. Despite the motion for deferral, the Board proceeded to take public input on the proposed suspension for almost two hours.

The Board will take up these issues again at its March 4 Management & Planning meeting and then again at a public hearing on March 12.

A recent decision from the Florida 4th District Court of Appeal illustrates some special land use concerns that come into play when the affected party holds a leasehold interest rather than fee simple ownership.

Changing Regulations Can Affect Leaseholders

In Village of N. Palm Bch. v. S&H Foster’s, Inc., 80 So. 3d. 433 (Fla. 4th DCA 2012), the plaintiff, as a leaseholder, operated an “after hours bar” in Palm Beach County which was permitted to serve alcohol for consumption on premises until 5:00 a.m. The owner of the property filed a petition to voluntarily annex the property into the Village of North Palm Beach. The statutory procedure for annexation required only the consent of the landowner and not the leaseholder. An existing Village ordinance prohibited the sale of alcoholic beverages for consumption on premises between 2:00 a.m. and 7:00 a.m., effectively depriving Foster’s of three hours of business it had enjoyed for many years while in the unincorporated county. After approval of the annexation, the leaseholder sought relief in court prohibiting application of the Village’s ordinance and allowing the bar to remain open until 5:00 a.m.

The Ruling

The trial court ruled in favor of the bar and found that the bar was “grandfathered” to operate under the old hours until its leasehold interest expired in 2015, but the appellate court reversed. The appellate court held that the Village had the authority to regulate the sale of alcohol within its borders pursuant to State statute, and that the Village properly followed the statutory procedure for voluntary annexation. Accordingly, the bar had to comply with the Village’s liquor sales ordinance, and was not “grandfathered” under the County’s old hours of operation.

Bottom Line

The case illustrates how leaseholders can fall through the cracks with regard to zoning and land use matters. The owner of the property often has the ability to proceed through rezonings, annexations, and similar procedures without the consent of the tenant, and notices of code violation and nearby pending zoning matters frequently are sent only to the owner of record. Drafters of leases may well want to consider addressing such matters during lease negotiations, particularly when representing tenants.

In a new twist on an old case, Florida’s 5th District Court of Appeal recently held that the failure of a county to adequately maintain a public roadway may result in a “taking” of property that is accessed by the that road. Jordan v. St. Johns County, 36 Fla. L. Weekly D1095a (May 20, 2011).

At issue was a stretch of former State Highway A1A which runs along the Atlantic Ocean in St. Johns County. The road had been deeded to the County by the State in 1979 after the State re-routed A1A approximately 800 feet west of its original location. After numerous storms and natural forces caused significant damage to the roadway, a group of owners whose property obtained access via “Old A1A” sued the County for failing to maintain the roadway in useable condition. The County took the position that it had the sole authority and discretion to determine what constituted reasonable roadway maintenance. The trial court granted summary judgment in favor of the County, and the landowners appealed.

The 5th DCA reversed the trial court and held that:

the County had the obligation to maintain the roadway at a “reasonable level . . . that affords meaningful access,” unless or until the County formally abandons the road; and

a county’s decision not to maintain a roadway at a reasonable level could constitute effective abandonment of the roadway, depriving the property owners of access to their property without compensation.

The summary judgment on these counts was reversed and remanded to the trial court for further proceedings.

In recognizing a potential uncompensated taking of access rights, the 5th DCA relied on the 1989 Florida Supreme Court decision in Palm Beach County v. Tessler, 538 So.2d 846. In Tessler, the court held that roadway improvements that eliminated a commercial property owner’s direct access to an adjacent arterial could result in a compensable taking of the owner’s access rights if the remaining access to the property was so circuitous as to essentially render the property unusable for commercial purposes. Very few landowners had been able to successfully use the Tessler decision to establish a taking based upon deprivation of access, but the St. Johns County case provides a warning to local governments that decisions pertaining to roadway access can lead to a potentially compensable taking of real property. A motion for rehearing is presently pending before the court.

On March 25, we reported on a recent appellate case in which the court refused to recognized the “superpriority” status of code enforcement liens established by a local ordinance. We indicated that a motion was pending to certify the case to the Florida Supreme Court. In a recent ruling on that motion, the 5th District Court of Appeal certified the following question to the Florida Supreme Court as one of great public importance:

Whether … a municipality has the authority to enact an ordinance stating that its code enforcement liens, created pursuant to a code enforcement board order and recorded in the public records of the applicable county, shall be superior in dignity to prior recorded mortgages?”

Code enforcement liens that were granted “superpriority” status by a local government ordinance were held to lack priority to a prior-recorded mortgage in a recent Florida appellate court decision. City of Palm Bay v. Wells Fargo Bank, N.A., 36 Fla. L. Weekly D161 (Fla. 5th DCA January 21, 2011).

The City of Palm Bay enacted an ordinance creating its Code Enforcement Board in 1997. Under the ordinance, liens on real property created by the Board would be co-equal with state and local tax liens, and would be “superior in dignity to all other liens, titles and claims.”

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About this Blog

Since 1924, the real estate and land use attorneys at Henderson Franklin have offered our clients guidance in matters of transactional real estate and development, community association law, real estate litigation, eminent domain, land use and environmental law.

ABOUT THE REAL ESTATE PRACTICE

Since 1924, the real estate and land use attorneys at Henderson Franklin have offered our clients guidance in matters of transactional real estate and development, community association law, real estate litigation, eminent domain, land use and environmental law.

About the Land Use Practice

Attorneys in this practice area represent both private and public interests in matters of land use and environmental law, permitting, zoning, litigation and related legal matters.Read More